1. The Appellants who are the legal heirs of deceased Lal Bahadur
Singh who died in a motor vehicle accident which occurred on
02.07.2003, take exception to a judgment dated 29.10.2010
passed by the Motor Accident Claims Tribunal (the Claims
Tribunal) whereby while awarding a compensation of
`3,86,000/-, deduction of 50% was made on the ground that the
deceased was sitting in the vehicle whose driver was also
negligent for causing the accident. In other words, it was held
that there was contributory negligence and thus, the Respondent
National Insurance Company Limited was required to pay a
MAC. APP. 125/2011 Page 1 of 6
compensation of `1,93,000/- as against the compensation of
`3,86,000/- payable to them.

2. Following contentions are raised on behalf of the Appellants:-

(i) The accident was caused on account of rash and negligent
driving of a truck No.MP-20G-7500 whereas the
deceased was sitting in a truck No.MP-17C-3303. The
driver, owner and insurer of truck No.MP-20G-7500 were
liable to pay entire compensation.

(ii) Even if, it is assumed that there was negligence on the
part of both the drivers, it was not a case of contributory
negligence but of composite negligence. The
owners/insurers of both the vehicles were liable to pay
the compensation jointly and severally. In other words,
the Appellants could recover the compensation from the
owners/insurer of either of the two vehicles.

3. The Appeal must succeed on both the grounds.

4. The Claims Tribunal dealt with the issue of negligence as
under:-

"6. PW-2 Sh. Mahesh Singh deposed that he alongwith
deceased and other traders was travelling in Truck
bearing registration no.MP-17C-3303 on 2.7.2003 with
their respective goods. When this ill-fated truck reached
near village Gharpata, PS Dhuma, MP on National
Highway No.7 there came a truck bearing registration
no.MP-20G-7500 from Nagpur side. At that time he had
MAC. APP. 125/2011 Page 2 of 6
alighted from the truck to answer the call of the nature
and driver of his tuck was trying to park it on the left
bank of the road. In the meantime, the truck bearing
registration no.MP-20G-7500, driven by its driver in
most rash and negligent manner and high speed, rammed
into the front side of the truck. Due to collision, Lal
Bahadur Singh died on the spot. Both the drivers also
became victim of the accident and other occupants
received injuries. In the end, he stated that accident in
question has been caused due to the rash and negligent
driving of the offending truck.

7. This witness was cross-examined at length by the
Insurance Company. He could not remember the name
of driver of his truck. He also failed to re-collect the
names of the persons who sustained injuries in the said
accident.

8. The police of PS Dhuma, Distt. Sivni, MP had
registered two FIRs i.e. FIR No.67/2003 and 68/2003
regarding this accident. FIR no.67/2003 has been
registered against the driver of victim truck i.e. truck
bearing registration no.MP-17-C3303 and FIR
No.68/2003 against the driver of Truck no.MP-20G-
7500. In both cases the police has sent cancellation
report saying that there was nobody to proceed against
as both the drivers had perished. Police did not try to
know during investigation which of the driver was at
fault. Rough site plan of both FIRs mentions the position
of two trucks at far way from each other and are lying on
the directions in which they were going. So, these site
plans also did not help this Tribunal reaching to any
conclusion about the offending vehicle.

9. As per the FIR‟s, cancellation reports and rough site
plans collectively exhibited as Ex.R-1, the position of
victim as well as offending truck is evenly balanced
because all these documents mention the drive of both
MAC. APP. 125/2011 Page 3 of 6
trucks as accused. So, in the opinion of the police, it was
a case of contributory negligence."

5. It may be noticed that PW-2 Mahesh Singh was empathic that
the offending truck No.MP-20G-7500 was being driven rashly
and negligently and in a zigzag manner, while the truck in
which the deceased was sitting, was parked on the left side of
the road. This part of PW-2's testimony was not challenged in
cross-examination. Unfortunately, the Claims Tribunal held
both the drivers to be responsible for the accident on the
ground, inter alia, that PW-2's signatures were not appearing
either on the inquest proceedings or on any other paper prepared
by the police. It was also observed that PW-2 could not give the
name of the driver. It is important to note that PW-2's presence
at the spot was not disputed. Thus, from PW-2's testimony, it
was established that the accident was caused on account of rash
and negligent driving of truck No. MP-20G-7500 by its driver
Inderjeet Singh, who also died in the accident.

6. Contributory negligence can be attributed to the victim when
the victim himself contributes to the accident. When an accident
takes place on account of negligence of two or more persons
without any fault of the victim, it would be a case of composite
negligence and not of contributory negligence.

7. In Bherlal v. Kamal Singh, (2005) 2 TN MAC 39 (Mad), it was
held by the Madras High Court that in case of composite
negligence a third party travelling in one of the vehicles will not
MAC. APP. 125/2011 Page 4 of 6
be guilty of contributory negligence. In T.O. Anthony v.
Karvarnani, (2008) 3 SCC 748, the Supreme Court held as
under: -

"6. „Composite negligence‟ refers to the negligence on
the part of two or more persons. Where a person is
injured as a result of negligence on the part of two or
more wrong doers, it is said that the person was injured
on account of the composite negligence of those wrong-
doers. In such a case, each wrong doer, is jointly and
severally liable to the injured for payment of the entire
damages and the injured perso has choice of proceeding
against all or any of them. In such a case, the injured
need not establish the extent of responsibility of each
wrong-doer separately, nor is it necessary for the court
to determine the extent of liability of each wrong-doer
separately. On the other hand where a person suffers
injury, partly due to the negligence on the part of another
person or persons, and partly as a result of his own
negligence, then the negligence of the part of the injured
which contributed to the accident is referred to as his
contributory negligence. Where the injured is guilty of
some negligence, his claim for damages is not defeated
merely by reason of the negligence on his part but the
damages recoverable by him in respect of the injuries
stands reduced in proportion to his contributory
negligence."

8. It is, therefore, clear that there was no contributory negligence
on the part of deceased Lal Bahadur Singh. If both the drivers
were negligent and both of them along with the owners and
insurers were jointly and severally liable to pay the
compensation.

9. No other contention has been raised.

MAC. APP. 125/2011 Page 5 of 6

10. In view of the foregoing discussion, the amount of
compensation of `3,86,000/- calculated by the Claims Tribunal
was payable by the Respondent No.2 National Insurance
Company Limited.

11. The compensation of `1,93,000/- has already been
paid/deposited. Rest of the amount of `1,93,000/- shall also
carry interest @ 7.5% per annum from the date of filing of the
petition till its payment, as awarded by the Claims Tribunal and
shall be deposited by Respondent No.2, the Insurer of the
offending vehicle within six weeks before the Claims Tribunal

12. The amount shall be payable to the Appellants in equal
proportion.

13. Since this accident took place in the year 2003, 40% of the
compensation amount shall be released to them on deposit.
Rest shall be held in fixed deposit for a period of three years.